State v. Cooley

• Decision Date: 21 May 1975
• Docket Number: No. 57302,57302
• Citation: 229 N.W.2d 755
• Parties: STATE of Iowa, Appellee, v. Steven Melvin COOLEY, Appellant.
• Court: Iowa Supreme Court

Page 755

229 N.W.2d 755

STATE of Iowa, Appellee, v. Steven Melvin COOLEY, Appellant.

No. 57302.

Supreme Court of Iowa.

May 21, 1975.

Jonathan C. Wilson, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Darby Maria Coriden, Asst. County Atty., and Ray A. Fenton, County Atty., for appellee.

Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.

RAWLINGS, Justice.

Defendant, Steven Melvin Cooley, appeals from judgment on jury verdict finding him guilty of carrying a concealed weapon in violation of The Code 1971, Section 695.2. We reverse.

October 8, 1971, at about 9:00 p.m., two Des Moines policemen, on special assignment to investigate armed robberies and house prowling in the Model Cities area, observed a 1961 Chevrolet parked at the corner of Thirteenth Street and Forest Avenue. Occupants of the vehicle were defendant, Vicky Lyon and her two year old child. At approximately 9:30, defendant emerged from the passenger side of the Chevrolet and entered the Salt and Pepper Lounge, a tavern located in the 1300 block on Forest Avenue. Defendant walked back and forth between the tavern and automobile two or three times, on each occasion remaining in the lounge for several minutes. Mrs. Lyon, driver of the Chevrolet (owned by her husband), waited in the car with her child. Upon defendant's last emergence from the tavern he engaged in a brief conversation with an individual, later identified as Hall. Defendant thereafter returned to the car which then proceeded east on Forest Avenue.

Several blocks away the officers halted the Chevrolet. Mrs. Lyon was asked for and produced her driver's license after accompanying one of the officers to the nearby patrol car. Meanwhile, the other policeman went to the passenger side of the Chevrolet and asked defendant to step out. When defendant complied the officer noticed the handle of a revolver protruding from beneath the front seat. Defendant was thereupon arrested.

Subsequently, defense counsel filed a pretrial motion to suppress, as illegally obtained evidence, the seized revolver. A hearing followed. In denying said motion trial court foundationally held reasonably suspicious circumstances justified the car-stop.

During trial, in absence of the jury, defendant renewed his previously voiced objection to admission in evidence of the aforesaid revolver. That objection was overruled, this time on the premise Code § 321.492, quoted Infra, authorized a stop of the vehicle.

Upon the basis of each holding, Supra, trial court concluded the officer was in a place where he had a right to be when the gun was observed and the seized weapon was therefore admissible in evidence.

Defendant's directed verdict motions, made at close of the State's case and again after introduction of all evidence, were overruled.

During deliberations the jury requested a rereading of testimony given by several State's witnesses. Trial court denied same and the above noted guilty verdict was thereafter returned.

Defendant subsequently moved for a new trial which was denied.

In support of a reversal defendant asserts trial court erred in (1) denying his suppression motion and overruling the in-course-of-trial objection regarding introduction in evidence of the seized revolver, (2) refusing a jury request for the rereading of testimony given by several State's witnesses, (3) failing to instruct the jury on the meaning of the word 'carried' as used in the accusatory charge, (4) overruling his directed verdict motions based on insufficiency of evidence, and (5) denying his new trial motion.

I. It is prefatorily understood, contraband in plain view or readily observable by an officer while in a place where he or she has a lawful right to be is subject to seizure, absent a warrant, and admissible in evidence. See State v. Merchandise Seized, 225 N.W.2d 921, 925 (Iowa 1975).

Defendant contends, however, stopping of the Lyon vehicle was constitutionally impermissible, therefore the officers' presence at the stopped car was unlawful. In this regard, he reasons the initial stop cannot be justified by (1) provisions of Code § 321.492, or (2) existent circumstances reasonably suggestive of criminal activity. Upon these premises defendant maintains the weapon was unlawfully obtained and therefore erroneously admitted in evidence. The foregoing contentions will be entertained in the order presented.

Code § 321.492, states, in relevant part: 'Any peace officer is authorized to stop any vehicle to require exhibition of the driver's operator or chauffeur license * * *.'

Defendant initially contends that since the Lyon vehicle was not stopped for the purpose of examining the operator's permit but rather to satisfy the officers' mere suspicions or curiosity, the viewing officer was not in a place where he had a lawful right to be. He alternatively posits that in event § 321.492 authorizes vehicle stops absent the purpose to inspect the operator's permit, then this statute is unconstitutional. The State oppositively argues § 321.492 gives officers an absolute right to stop a vehicle which in turn justifies his presence. By virtue of our holding, Infra, we do not reach the above stated alternative issue.

As best determinable this court has never before been called upon to resolve the aforesaid initial contention. We shall therefore look to other relevant decisions and authorities for guidance.

First called into play is United States v. Cupps, 503 F.2d 277 (6th Cir. 1974). There the defendant had been stopped by officers at which time they discovered and took possession of a pistol lying on the front seat of the halted vehicle. Defendant was thereafter found guilty of possessing a gun after having been convicted of a felony. On appeal the conviction was reversed. Although the seizure was invalidated on other grounds the court aptly stated, 503 F.2d at 282:

'(W)e have assumed, Arguendo, that the state police have, as appellee contends under their authority to inspect licenses, an absolute right to stop any driver. Although it is unnecessary to decide the question in this appeal, we observe that the officers' claim that this was their reason for stopping appellant is refuted by other evidence. They testified that they followed and stopped Cupps (defendant) because they wanted to know his business and the identity of his passengers, and not because they wanted to inspect his license. * * * Police may not lawfully use their general inspection powers as a pretext for stopping motorists for the purpose of inquiring about their business on the public highways. The pretextuous nature of the stop in this case is demonstrated by the fact that Cupps' driving to the police barracks was an entirely lawful act. * * * Jarvis and Combs (officers) acted beyond their authority when they ordered Cupps out of the automobile, and, therefore, the plain view doctrine never became operative. Unless an officer has a right to be where he is, 'plain view alone is never enough to justify the warrantless seizure of evidence." (emphasis supplied).

And in People v. Harr, 93 Ill.App.2d 146, 235 N.E.2d 1, 2 (1968), is this pertinent observation:

'(T)he State argues that there was no illegal arrest or search in that the officer was empowered to stop a motor vehicle and ask the driver to produce his license under the provisions of Chapter 95 1/2, Sec. 6--118 of the Illinois Revised Statutes (license and permits to be carried and exhibited on demand) * * *.

'* * *

'The facts in this case indicate that the police officer here did not stop the defendant's car for the purpose of enforcing this statute. He stopped it, on the admitted facts, for the purpose of finding out who the defendant was, where he had been and where he was going. The statute cannot, in any event, be made applicable as authority to inspect the license as a mere subterfuge to obtain information or evidence not related to the licensing requirement.' (emphasis supplied).

Then in Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512, 515 (1963), the court aptly declared:

'(W)hen the officer's primary purpose in stopping the motorist is not to inspect his license, but to examine the contents of the vehicle, the detention is not in good faith for examination of the driver's license, but a mere subterfuge or excuse for a failure to procure a search warrant. If evidence is discovered under such circumstances, it is illegally obtained.

'On the other hand, if the evidence is openly visible to the officer's eyes at the time he is examining the operator's license, where the vehicle was stopped in good faith for that purpose, the officer is not deprived of his power to make an arrest for a misdemeanor or other offense committed in his presence.' (emphasis supplied).

Accord, Lipton v. United States, 348 F.2d 591, 593--594 (9th Cir. 1965); People v. Francis, 4 Ill.App.3d 65, 280 N.E.2d 49, 51 (1972); Coston v. State, 252 Miss. 257, 172 So.2d 764, 765 (1965); State v. Williams, 237 S.C. 252, 116 S.E.2d 858, 860 (1960); Reels v. State, 210 Tenn. 92, 355 S.W.2d 97 (1962); Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 635--636 (1947); Smith v. State, 182 Tenn. 158, 184 S.W.2d 390 (1945); Cox v. State, 181 Tenn. 344, 181 S.W.2d 338 (1944). See also 46 Iowa L.Rev. 802, 808 (1961); 60 Va.L.Rev. 666, 676--678 (1974).

We subscribe to and hereby adopt the views expressed in the foregoing cases.

With regard to the reasons advanced by the officers for stopping the instantly involved (Lyon) car, the suppression hearing record reveals this pertinent colloquy:

'Q. Mr. Wells (officer), I understand your testimony to be that the reason that you initially stopped this car was because you considered the actions of the Defendant which you alleged took place in going to and from the tavern to be suspicious, is that correct? A. That, plus the other factors. With the situation, yes, sir.

'Q. The other factors to which you refer would be that this is a high crime rate...